The Issue The issue is whether Prestige Gunite of Orlando, Inc. (Prestige) may use an air general permit pursuant to Florida Administrative Code Rule 62-210.300(4)(c)2. to operate a concrete batch plant in an unincorporated part of Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: A. The Parties Prestige is a wholly-owned subsidiary of Prestige Gunite, Inc.; the parent corporation is located at 7228-C Westport Place, West Palm Beach, Florida. The owner of the parent corporation was identified as Brian A. Mahoney, who also owns and controls a number of other entities in the State that are engaged in the business of producing cement. The record does not disclose the names of all of the corporate entities, but it does show that Mr. Mahoney has formed two corporate entities who operate at the same location in Lake County, Florida: Prestige Gunite of Orlando, Inc. (the applicant here), and a limited liability corporation known as Prestige/AB Ready Mix, LLC, which has a different parent corporation. The latter entity operates a ready-mix cement plant on the southern part of the property on which the applicant's operations will be located. In addition, the record shows that Mr. Mahoney operates at least two other cement plants in the State, one a "smaller facility" at Ocala, Florida, whose name and corporate status are unknown, and B & B South Florida, Inc., which operates a facility at an undisclosed location. Although these entities are owned and controlled by one individual, the applicant has represented without dispute that all of the cement plants are operated as separate entities, each with its own permit issued by the Department. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2006), to evaluate applications for air emission permits that are used by cement batching plants. The use of the permit in issue here was reviewed by the Department's Central District Office in Orlando, Florida. Petitioners all reside in close proximity to the proposed facility. In addition, their homes are in closer proximity to the existing ready-mix facility. Through testimony at hearing, Petitioners established that their substantial interests are affected by the new facility and they have standing to challenge the use of the permit. Background A general permit is established by rule and constitutes a "simplified procedure" used by the Department to allow a facility to begin operations, as compared with other types of permits issued by the Department. Department standards provide that if a facility such as that proposed by the applicant emits less than 100 tons per year of particulate matter and is therefore a Non-Title V source, it qualifies to operate under a general permit, assuming that all other criteria are satisfied. Under this process, the Department reviews the notification (application) for compliance with two applicable rules: Florida Administrative Code Rule 62-296.414, which establishes the substantive criteria for using a general permit for a concrete batching plant, and Florida Administrative Code Rule 62- 210.300(4)(c)2.a.-f., which contains the procedural requirements for obtaining a Non-Title V Air General Permit. Unless the Department decides to deny the application, no formal proposed agency action is issued. Therefore, none was issued in this case. Absent the filing of a protest by a third party, the applicant may then use the general permit after the time for third parties to file a challenge has expired. The facts underlying the filing of the instant application are somewhat confusing and form the basis, in part, for the allegations in the two Petitions filed in opposition to the notification. In May 1999, Prestige Gunite of Orlando, Inc., gave notification of its intention to use a general air permit to operate a concrete batching plant at 17600 State Road 50, near Clermont, Florida (also known as the Clermont Yard). Because no challenge to that notification was made, the applicant was issued Permit No. 7775088-001-AG, which became effective on July 8, 1999, and expired on July 9, 2004. Presumably, Prestige operated a gunite batching plant under that permit during that five-year period. In 2001, Prestige/AB Ready-Mix, LLC (then known as Prestige/AB, Inc.) applied for another air general permit at the same location (the Clermont Yard) to operate a concrete batching plant.3 (Apparently, multiple batching plants are authorized at the same geographic location so long as the total particulate of all facilities at that location does not exceed 100 tons per year, which would cause the facilities to lose their Non-Title V status.) Because no third party objections were filed, and all criteria were satisfied, Permit Number 7775088-003-AG was issued. Although the permit was scheduled to expire in 2006, it was recently renewed for another five years and will now expire on August 3, 2011. See Prestige Exhibit 2. (Florida Administrative Code Rule 62-4.540(13) limits the use of an air general permit to five years.) Prestige says that it incorrectly assumed that the air general permit issued to Prestige/AB Ready-Mix, LLC, in 2001 (and renewed in August 2006) also authorized it to continue to operate a gunite batching plant at the Clermont Yard after the first air general permit issued to Prestige Gunite of Orlando, Inc., expired in 2004. This explanation seems unusual, given the fact that the applicant's owner operates multiple permitted cement facilities throughout the State and should be familiar with the permitting process. In any event, Prestige continued to operate a gunite batching plant at the Clermont Yard without a permit. Apparently prompted by numerous and repeated complaints from nearby residents over air emission concerns from both operations, the Department eventually conducted an investigation of both facilities. Besides finding that emissions standards and hazardous waste rules were being violated, the Department discovered that Prestige was operating a gunite facility without a permit. On May 31, 2006, the Department issued a Warning Letter to the parent corporation advising that it must cease gunite operations until a permit was obtained. Despite the Warning Letter, operations at the facility continued, which prompted a second letter from the Department on August 29, 2006, advising that formal enforcement action would be taken unless operations were terminated. In early September 2006, operations ceased and have not resumed pending the outcome of this proceeding. On July 31, 2006, Prestige filed an Air General Permit Notification Form to notify the Department of its intent to use both a new and existing air general permit for its gunite batching plant at the Clermont Yard. This application was denied by the Department on August 29, 2006, because of "unconfined emissions," that is, the applicant had failed "to take reasonable precautions to contain particulate emissions from truck loading operations." During this same period of time, a meeting by the Central District staff and the applicant was held and on August 31, 2006, Prestige filed a second Air General Permit Notification Form advising that it intended to operate a concrete batching plant at the Clermont Yard. A new permit, rather than a renewal of the old permit, was sought since the original permit had expired in 2004. Thus, it was not necessary for Prestige to surrender any existing permits, a requirement found in the application form. Because the Department concluded that all rule criteria had been satisfied, it took no action regarding the application. On August 31, 2006, Prestige Gunite, Inc. (as opposed to Prestige Gunite of Orlando, Inc., which had filed the notification) caused to be published in the The Daily Commercial, a newspaper of general circulation in Lake County, a Public Notice of Application for a General Permit. The following day, a similar notice was published in the South Lake Press, also a newspaper of general circulation published in Lake County. On September 21, 2006, Mr. Koehnlein, who lives just east of a vacant lot on the eastern side of the site, filed his Petition challenging the use of the permit on numerous grounds. (Mr. Koehnlein's Petition was actually filed in response to the Department's notice of intent dated August 29, 2006, to deny the first application filed by Prestige. However, it was treated as a request for a hearing in response to the second notification filed by the applicant.) On the same date, and then through counsel, Petitioners, Aaron and Amy Wright, Joseph Maxwell, Donald Stone, and Marlene Matthews, who live in a residential subdivision immediately south of the site, filed their Petition challenging Prestige's use of the permit. Although numerous allegations were raised in the Petitions, most were struck by Order dated November 14, 2006, leaving only the allegation of whether Prestige is qualified to use the general permit by meeting the applicable requirements under Florida Administrative Code Rules 62-210.300(4)(c)2. and 62-296.414. The Permit The Notification filed by the applicant indicates that the facility will be located at 17600 State Road 50 near Clermont, Florida. In broader geographic terms, the facility is located just south of State Road 50 (which runs in an east-west direction), and it appears to be just west of the Florida Turnpike and approximately half way between the Cities of Winter Garden (in Orange County) and Clermont (in Lake County). The site is bordered by State Road 50 to the north, a mini-storage facility to the west, a light industrial area and vacant lot to the east, and as more fully discussed below, a residential area to the south. At least since 1985, a residential subdivision has occupied the area immediately south of and adjacent to the site of the proposed facility.4 For many years, the subject property just north of the subdivision was owned by Kelly Construction Company (Kelly) and remained vacant. At some point after 1985, however, Kelly began using the site as a gravel pit and commenced excavation operations as close as forty feet to the back property line of the homes in the subdivision. According to one long-time resident, Kelly then began using the vacant land as a dumping site for building materials and illegal trash. After a complaint was filed, in 1998 the Department shut down the landfill operations and a substantial berm was constructed between the subject property and the subdivision. Around 1999, Prestige's parent company either purchased or obtained authorization to use the property and commenced operations shortly thereafter under the permit issued to Prestige Gunite of Orlando, Inc. It also reduced the size of the berm between the plant operations and the subdivision property line to approximately seventy-five feet. Prestige's gunite facility will share a six-acre tract of property already used by Prestige/AB Ready Mix, Inc., under a permit obtained by that entity in 2001. The gunite portion of the business will use the northern part of the property, while the ready-mix operations are located on the southern part of the tract, which lie less than a hundred feet or so from the back property line of the closest homes. Access to both operations will be from State Road 50, which lies directly north of the property. In addition, there is a truck maintenance facility on the site, which will perform maintenance work on vehicles for both operations. The proposed gunite facility consists of an existing cement storage silo containing dry powdered cement, sand storage areas, and office space. The finished product (gunite) is used in the construction of swimming pools. The dry powdered cement will be loaded into the rear compartment of the cement trucks, while sand is loaded by a front end loader into the front compartment on the truck. The sand is stored in nearby storage piles and will be covered by tarpaulins when not in use. The materials are then transported to a job site, off-loaded, mixed with water, and sprayed into a swimming pool shell. These operations are in contrast to the existing ready-mix operations now being conducted on the southern half of the property, which involve the on-site mixing of cement, sand, aggregate, fly ash, and water to create cement, the loading of the wet mixture into trucks, and the hauling of the wet cement to the job site. In addition, the ready-mix cement trucks require continual cleaning on site, which creates a noisy environment for the surrounding area. Permit Requirements Under Florida Administrative Code Rule 62-296.414, which contains the substantive requirements for using the permit, an applicant must agree to comply with various requirements set forth in the rule. They include requirements relative to stack emissions, unconfined emissions, test methods and procedures, and compliance demonstration. Although the application and supporting documentation reflect that each of the above requirements has been met, perhaps the most relevant requirements to Petitioners' concerns are the two that the owner "limit visible emissions to 5 percent opacity" and "take reasonable precautions to control unconfined emissions from hoppers, storage and conveying equipment, conveyor drop points, truck loading and unloading, roads, parking areas, stock piles, and yards." Fla. Admin. Code R. 62- 296.414(1) and (2). To control unconfined emissions, Prestige will operate water and sweeper trucks (which are shared with the ready-mix operation) that will periodically water the grounds during hours of operation and remove excess materials from roads and other loading areas which might otherwise be carried by the wind to surrounding neighborhoods. Prestige will place tarpaulins over sand piles, when not in use, to prevent sand from being blown out of the yard. To control stack emissions, a bag system has been installed on top of the silo in which the dry powdered cement is stored. This is intended to reduce emissions that may be generated from the gunite silo during loading and unloading operations. The baghouse will be periodically inspected and bags changed on a regular basis. Also, a shaker system is automatically initiated during the loading process which reduces emissions by moving cement and cement dust down into the silo rather than up and out of the silo. Further, the lid on the chute (which fits onto the opening of the truck where the material is loaded) has been modified to prevent sand or cement from "smoking" up and causing an emission problem. Prestige acknowledges that prior to shutting down operations in early September 2006, it experienced an emissions problem with the truck loading operation which will be corrected by the modification of the lid. Finally, within thirty days after operations are commenced, Prestige must conduct a visible emission test on each dust collector exhaust point. The procedural requirements for obtaining a Non-Title V Air General Permit to operate a concrete batching plant are found in Florida Administrative Code Rule 62-210.300(4)(c)2. and simply require that the owner (Prestige) provide a completed Concrete Batching Plant Air Permit Notification Form, agree to comply with the requirements of Florida Administrative Code Rule 62-296.414 (cited above), submit notification to the Department in the event the site of the plant is relocated, agree to meet certain requirements if nonmetallic minerals are processed, and that if more than one relocatable concrete batching plant is located at the same location, agree that the total operations would not be a Title V source. The record shows that each of these requirements has been met. Petitioners' Concerns Petitioners presented a wide array of concerns, most of which are not relevant to the narrow issues in this case and instead appear to be related to the operations of the ready-mix plant or matters outside the jurisdiction of the Department.5 Their undisputed testimony is that the occupants of the homes which lie near and adjacent to the six-acre site are now, and have been for years, the recipients of dust and other particulate matter in such quantities as to force them to keep their windows closed throughout the year and prevent them from enjoying any type of outside activity in the area. Virtually all of Petitioners and their witnesses testified about constant respiratory ailments which they or members of their family suffer from due to the air emissions from the cement plants. These ailments began after the adjoining property was converted to a cement plant. They also pointed out that vehicles which are not parked in enclosed garages are covered by dust after a relatively short period of time. For example, cars that are washed in the afternoon and parked in front of their owners' homes that evening will be covered in dust the next morning. See Petitioners' Exhibits 18A, B, and C. While not a consideration in this case, water truck and sweeping operations at the gunite facility will begin at 6:00 a.m., and operations have begun as early as 2:00 a.m. or 3:00 a.m. at the ready-mix facility. Thus, beginning early in the morning and continuing throughout the day, the neighbors are subjected to the sound of large cement trucks being driven throughout the yard while being loaded with cement, cleaned, or mechanically repaired. At the same time, Petitioners have indicated that the sale of their homes is not possible due to the operation of the cement plants, and one witness stated that it was unlikely he could even rent his home to a third party due to the issues facing the neighborhood. Petitioners uniformly expressed dissatisfaction with the Central District Office's handling of their long-standing complaints (beginning years ago) and the amount of time it took for the Department to actually perform an inspection of the adjoining property. After conducting an initial inspection in November 2005 and a follow-up inspection in March 2006, presumably because of Petitioners' complaints, in October 2006 the Department entered into a Short Form Consent Order with both Prestige and the ready-mix entity. To resolve a number of violations, including operating without a permit, the Department required Prestige to pay a $10,800.00 civil fine and take corrective action. (Also, Prestige/AB Ready Mix, LLC, was required to pay a $15,650.00 civil penalty for numerous violations associated with its operations and take corrective action.) The matter was finally resolved by a Department letter dated October 13, 2006. See Department Exhibit 9. According to a Department inspector, a follow-up inspection in early December 2006 did not detect any on-site violations by the ready-mix plant. Despite the corrective actions which the ready-mix operation may have undertaken, Petitioners complain that the air quality in the neighborhood has improved only slightly, and that was a result of Prestige shutting down the gunite operations in early September 2006 pending the outcome of this case, and was not due to any corrective measures required by the Short Form Consent Orders. Petitioners' complaints regarding air quality are real and not imagined. Credible testimony and photographs confirm them to be true. It is fair to assume that if emissions violations are still occurring, as Petitioners contend, they are due to the operations of the ready-mix plant and should be the subject of further inspections by the Department and an enforcement action, if appropriate. However, given the Department's straight-forward regulations pertaining to the use of an air general permit, the precautions which Prestige has stated it will take (and assuming that they will occur), and the expert testimony supporting a finding that all criteria have been met, Prestige is qualified to use the applied-for air general permit to operate a cement batching plant at the Clermont Yard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Prestige Gunite of Orlando, Inc., is qualified to use an air general permit at 17600 State Road 50, Clermont, Florida. DONE AND ENTERED this 5th day of March, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2007.
The Issue Whether the subject assessment of taxes, interest and penalties should be upheld.
Findings Of Fact By "Notice of Assessment and Jeopardy Findings" dated July 31, 1989, Respondent assessed Petitioner with taxes, interest, and penalties in the total amount, as of the date of the notice, of $161,724.75. This assessment was made pursuant to Section 212.0505, Florida Statutes, following an incident on February 4, 1988. The parties stipulated that this assessment was properly issued, that notice thereof was properly given to Gary Wayne Chitty, and that the mathematical calculations contained therein are accurate and correct. The following findings are made as to Petitioner, Gary Wayne Chitty, pursuant to the stipulation of the parties. His full name is Gary Wayne Chitty. His social security number is 261-17-0682. His date of birth is April 27, 1953. His present residence is 6840 S.W. 12th Street, Miami, Florida. He has never declared himself a citizen of any country other than the United States. On, or before, February 1988, he knew Rafael Silvio Pena. On February 4, 1988, he held a valid multi-engine pilot's license which was issued to him by the Federal Aviation Authority. On, or about February 4, 1988, he and Rafael Silvio Pena boarded and flew an aircraft designated N6726L. He and Mr. Pena planned to fly a multi-engine aircraft (N6726L) from a point outside of the United States and to enter the airspace of the United States near Cedar Key, Florida and travel within the airspace of Florida to Marathon, Florida. He filed, or caused to be filed, a flight plan for said trip with Mr. Pena in advance of the trip. He loaded or caused to be loaded marijuana on the aircraft (N6726L) prior to its departure. On, or about, February 4, 1988, he and Mr. Pena flew said airplane (N6726L) from a point in the vicinity of Cedar Key, Florida, to Marathon, Florida. During said flight, the aircraft made no other landings. During the entire flight on February 4, 1988, he and Mr. Pena were the sole occupants of said aircraft. During said flight he was the pilot of N6726L. He flew this aircraft on February 4, 1988 with the full knowledge and/or consent of the airplane's owners and/or official lessees. When he took off from the aircraft's departure point on February 4, 1988, it was loaded with a large quantity of marijuana. When he took control of said aircraft and took off, he knew it was loaded with said marijuana. He discussed his plans to transport the marijuana with Mr. Pena. When he took control of the aircraft, the aircraft (N6726L) contained nineteen (19) bales of marijuana which weighted six hundred ninety-nine (699) pounds. He and Mr. Pena flew this airplane along a course towards Marathon, Florida in a manner which took it over or near Lake Okeechobee, Florida. At a point along his route, he and/or Mr. Pena caused the bales of marijuana to be jettisoned from the aircraft. The marijuana was jettisoned as part of a conscious plan or design. The marijuana that was jettisoned from N6726L during its flight on February 4, 1988, weighed a total of 699 pounds. He did not know that during this flight of February 4, 1988, his aircraft was being observed by law enforcement officers. As part of his original plan, he piloted this aircraft to Marathon, Florida, where he landed. AA. During this entire flight the aircraft performed adequately and experienced no mech- anical difficulties. BB. Upon his landing at Marathon, he and Mr. Pena were arrested. CC. He knew the estimated retail value of the marijuana on board his aircraft (N6726L) was $600 per pound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the subject Jeopardy Findings and Assessment. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. COPIES FURNISHED: James McAuley, Esquire Mark Aliff, Esquire Assistant Attorneys General Department of Revenue Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Mel Black, Esquire 2937 S.W. 27th Avenue Miami, Florida 33133 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahasseee, Florida 32399-0100 William D. Moore General Counsel 203 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Respondent Coastal Lumber Company (Coastal) has provided reasonable assurances to Respondent Department of Environmental Protection (DEP) that it can comply with applicable provisions of Chapter 403, Florida Statutes, and related rules in the Florida Administrative Code regarding odor and visible emissions, and whether DEP should issue a Title V Air Operation Permit to Coastal Lumber.
Findings Of Fact Parties Petitioners live in Gadsden County, Florida. Their home is approximately a half a mile from Coastal's plywood plant in Havana, Florida. DEP is the agency that reviewed Coastal's application for a Title V Air Operation Permit and issued a draft permit and a notice of its intent to grant Coastal’s permit request. Coastal is the applicant for the proposed permit. Since 1971, Coastal has operated a wood products facility off of U.S. Highway 27 North in Havana, Florida. Coastal has operated various sawmill and hardwood operations during its existence. However, the sawmill and hardwood activities ceased operation in 1991 due to a shortage of logs in the area. Coastal began manufacturing plywood in 1980 and continues its plywood manufacturing activities today. Coastal employs approximately 250 people with shifts covering 24 hours a day, seven days a week, year round -- including most holidays. The shifts rotate, so the same employees cover both day shifts and night shifts. The operations of the plant, including compliance with environmental standards, are the same at night and on weekends as they are during the daytime shifts. Coastal has operated the plant at normal capacity up to and during this proceeding with the exception of its peeler operations, which ceased operating on February 8, 1998, because of a lack of logs. However, all the other equipment was operated at its normal rate throughout the hearing. Manufacturing Plywood Logs arrive at Coastal and are separated by size and stored in log yards along the southern and southeastern portions of the mill property which is bordered by 159-A and U.S. 27 North. Logs are later moved to a block conditioning area, stripped of their bark, and cut into eight-foot lengths. The eight-foot logs are then soaked in hot water for about eight hours to soften them. After that, the logs are placed in a lathe that spins the logs against a sharp knife and peels them into sheets of veneer. The sheets of veneer are placed on dryers for six to nine minutes to drive off moisture. Then, the dried sheets of veneer are layered with glue between layers of veneer and placed in a press for four to five minutes. The result is a sheet of plywood. The plywood is stacked according to its quality and some stacks are sealed by spraying the ends with canned spray paint. In a separate area, the cores of the logs are treated and shaped to be used as landscaping material. Air Pollution Sources at the Plant Coastal has been operating under seven separate DEP operating permits. The Title V permit, mandated by the Clean Air Act Amendments of 1990 and the subject of this proceeding, will combine those seven operating permits into a single operating permit. The seven permits cover five boiler systems and seven dust control systems. Two boilers (numbers 1 and 2) have restrictions on particulate matter, nitrogen oxides, and visible emissions. Boiler number 3, with a “wet scrubber,” also has restrictions on particular matter, on nitrogen oxides, and on visible emissions. Boilers numbered 4 and 5 have visible emission limits. Three veneer dryers and two plywood presses are not permitted, but are proposed to be permitted to Coastal under the permit which is the subject of this proceeding. Boilers 3, 4, and 5, are operating and are used to generate steam for the plant. The boilers are all fueled with wood waste such as bark chips and saw dust generated at the plant. The boilers are incapable of operating with a different type of fuel such as fuel oil. Also, it would be inefficient for Coastal to use any other type of fuel in the boilers because Coastal Lumber has an abundance of wood waste. The dust control systems include two filters for sander dust and four cyclones. A cyclone is a device which swirls dust and air together eventually releasing the air out of the top and letting the dust settle downward. The cyclones at the Coastal facility do not have filters inside. Three of the cyclones are not currently in use because they were used for the sawmill operations or to load rail cars and, at present, Coastal uses solely trucks. Coastal has included them in the application in the event that rail loading again becomes feasible. The fourth cyclone handles chips and sawdust collected throughout the plant. The veneer dryers and plywood presses emit steam mixed with small quantities of pine oil naturally present in the wood and are operating under a construction permit until covered under the Title V permit. Coastal's Title V permit application does not contemplate an increase in operations or capacity. Specifically, Coastal could not change its permitted capacity without adding new sources to its plant which would require additional permits. Coastal can operate its Havana plant in compliance with the conditions in its draft Title V Permit. Issues Raised by Petitioners Petitioners raised two issues in challenging the issuance of Coastal's Title V Air Operation Permit: sulfur or acid odors, and "smoke" or excess visible emissions that they attribute to the Coastal facility. According to Petitioners and some of their witnesses, the odors are worse when it is humid or following a rain, at night, and on weekends. Thick smoke experienced in the past by Petitioner Chester Nalls as a result of open burning at Coastal’s facility has ceased. Burning operations at present are only those instances of permitted burning for reforestation purposes. Two of Petitioners' witnesses, however, Cathy Moore and Sondra Rowan do not have any complaints about sulfur or acid odors from the Coastal facility. Moore testified that she occasionally smells a "treated wood smell" that she associates with Coastal Lumber. Rowan described what she perceived to be smoke from the facility, but has never had a problem with smoke or odor on her property. Donald Daniels, a neighbor of Petitioners, has experienced a burning wood smell and a smell that he describes as “chemical.” Sometimes, the smoke is like a fog and not distinguishable from condensed steam. Ash has been deposited on his truck. Nancy Lowe lives near the Coastal facility and claims that her car is often coated with ash. But she was unable at hearing to testify concerning the source of the ash. She has experienced a smell that she cannot identify, which she believes is created by Coastal since she associates that smell with smoke that settles like a fog on her neighborhood. Norma Page described what she believed to be smoke, but her testimony was unclear regarding where she observed the smoke. Additionally, she was not sure that she could distinguish between fog and smoke. Linda Pickles lives an equal distance from Coastal’s facility and the Peavy and Son asphalt plant in Havana. She has experienced “smokey” smells and sulfur smells, as well as the deposit of an ash-like substance at her home. She did not testify concerning the source of the substance. Although several types of odors --mainly wood odors-- are generated by Coastal's plywood manufacturing process, Coastal does not generate any odors that could be described as acid or sulfur odors. The log yard where Coastal stores harvested pine logs has odors of cut pine logs. The block conditioning area where logs are cut into eight-foot lengths and soaked in hot water has additional odors of cut wood and wet wood. A small amount of caustic or base is added to the water occasionally to keep the pH of the water neutral because wood is naturally acidic. Caustic generally tends to smell like soap or bleach; however, no such odors were associated with the caustic at Coastal Lumber. The area where the logs are peeled into thin veneer sheets generates pine odors. The dryers used on the sheets of veneer generate a smell described alternatively as a pine oil or a cookie-baking scent. Where the gluing occurs there is a faint odor similar to Elmer's glue. Additionally, an area near the boilers where sawdust and bark are stored for fuel generates smells, but none that would be objectionable. The area where the cores of the logs are treated and sliced into landscaping timbers has a slight, treated-wood odor. Also, where the plywood is color-coded by painting the edges, there is a localized paint smell. Neither the boilers nor a re-circulating pond at the Coastal facility are associated with any odors. From 1989 until the publication of the Notice of Intent to issue the Title V permit, Coastal did not receive any complaints about its Plywood Manufacturing facility in Havana, Florida. None of the processes at the Coastal facility generate sulfur or acid types of odors. Acid odors are usually associated with chemicals that contain sulfur. Wood fuel, as is used in the boilers, does not generally generate sulfur emissions. A facility such as the asphalt plant near Coastal’s location burns fuel oil and could generate sulfur odors. The asphalt plant is subject to the same emissions limitations as Coastal. Frequent open burning of trash, including tires, by other persons occurs near the Coastal facility and could produce sulfur smells. None of the odors at the Coastal facility are likely to mix with odors produced at other facilities in the area to create objectionable odors. Nor would any of the odors or processes within the plant combine to create chemical reactions leading to objectionable odors. Coastal employees who offered testimony regarding odors have a normal sense of smell. None of the Coastal employees who have responded to the Petitioners’ complaints have been able to detect the odor conditions described by Petitioners. No employees have complained of objectionable odors at the plant. No employees have been made sick by or quit because of odors at the plant within the last five years. Nor have any workers' compensation claims been filed because of odors generated by the plant. Contractors from Air Consulting and Engineering, Inc., hired by Coastal to conduct emissions testing at its facility, and a consultant from Environmental Resources Management Group, hired to study odors generated by the facility, have never noticed objectionable odors at the Coastal facility. DEP inspectors have visited Coastal on rainy, humid days when the odors would be expected to be at the worst and did not detect objectionable odors. Also, DEP inspectors who responded to Petitioners' complaints were unable to detect significant levels of odors at Petitioners' residence. Coastal's operations are not offensive to neighboring businesses and residences. A restaurant, located closer to Coastal Lumber than Petitioners' residence, has not made any complaints regarding odor. No credible evidence established that the odors complained of by the Petitioners were produced by Coastal Lumber. To the contrary, the evidence demonstrates that the odors may be caused by one or more other sources in the vicinity. No evidence was presented to indicate that odors emitted at the plant pose any danger to human health or welfare. Coastal Lumber's operations do not produce objectionable odor. The main sources of visible emissions which would be covered by the Title V permit are the three boilers used to generate steam for the plant. "Excess emissions" occur when a boiler becomes "upset" due to a malfunction of equipment or the startup or shutdown of equipment. Such conditions account for occasional dark puffs emitted by the boilers, but do not occur for long periods of time. Under DEP rules and the draft permit conditions, excess emissions may not exceed two hours in a twenty-four (24) hour period. Coastal has complied with excess emissions limits in the past and can comply with the draft permit conditions regarding excess emissions. The boilers at Coastal Lumber are equipped with oxygen sensors that regulate the rate of fuel coming into the boiler before an upset condition occurs, thus, minimizing excess emissions. Coastal Lumber has excess steam capacity so if a boiler is not operating properly it will be shut down. A computer also records the occurrence of upset conditions. Because the sensors are sent to an outside facility to be maintained and calibrated, Coastal employees can not change sensor settings or information recorded by the computers. Under its current operating permits, Coastal is required to conduct annual testing for visible emissions and has been found in compliance every year. During that testing, the plant operates under its normal procedures and at its normal capacity. Under its current operating permits, Coastal has been subject to inspections by DEP investigators, including weekend inspections. Some of the visits are scheduled so that Coastal knows the inspectors are coming, and others are not scheduled or announced in advance. Contractors from Air Consulting and Engineering, Inc., hired by Coastal to conduct visible emissions test have always found Coastal in compliance with visible emissions limits placed on it. Air Consulting and Engineering, Inc.'s reports and test results have always been accepted by DEP. DEP personnel have inspected the Coastal facility at least ten (10) times between December of 1996 and the hearing on February 9, 1998 -- eight of those inspections were made after January 24, 1998. Those inspections included an unannounced weekend inspection of the plant. Based on the Title V Application and Coastal Lumber's history of compliance with emissions limits, Coastal can comply with DEP emissions regulations. No employees have been made sick by or quit because of smoke at the plant. Nor have any workers' compensation claims been filed because of smoke generated by the plant. Petitioners also complained of black smoke from Coastal's log loaders. These diesel-fueled motor vehicles are not subject to the Title V air permit. Coastal has responded promptly to complaints of Petitioners and has made diligent efforts to locate excess emissions from its plant, but Petitioners' complaints can not be substantiated. In the absence of credible evidence that Coastal exceeds DEP emissions limits or that emissions from Coastal are harmful to human health or property, it is established that Coastal can operate in compliance with DEP standards for visible emissions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a Final Order GRANTING Coastal's Application for a Title V Air Operation Permit subject to the conditions set forth in the Draft Permit. DONE AND ENTERED this 18th day of March, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1998. COPIES FURNISHED: Paul H. Amundsen, Esquire Julia E. Smith, Esquire Amundsen and Moore Post Office Box 1759 Tallahassee, Florida 32302 Jeffrey Brown, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Chester Nalls Thelma Nalls Post Office Box 396 Havana, Florida 32333 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner is a Florida corporation doing business and having its principal place of business in Broward County, Florida. It holds an operating certificate as an air taxi/commercial operator issued by the Federal Aviation Administration on April 4, 1977. The certificate states that Petitioner has met the requirements of the Federal Aviation Act of 1958, as amended, and the rules prescribed thereunder for issuance of the certificate. The operating certificate was issued by the F.A.A. under 14 CFR 135. Petitioner is also registered as an air taxi operator with the Civil Aeronautics Board (C.A.B.) under 14 CFR 298. (Testimony of Jackson, Petitioner's Exhibit 2, Stipulation) Respondent's auditor conducted an audit of Petitioner's records for the period June 1, 1975 through July 31, 1978, and, on August 15, 1978, issued a Notice of Proposed Assessment of tax, penalties and interest under Chapter 212, Florida Statutes, in the total amount of $1,629.35 for alleged delinquent sales and use tax incurred during the audit period. The proposed assessment was based upon audit findings that Petitioner had purchased fuel, aircraft parts and repairs from a firm called Hansa Jet located at the Fort Lauderdale Hollywood Airport on which sales tax was allegedly due, but not paid thereon. Petitioner was not chartered as a corporation until March, 1977, and purchases prior to that time were made by Andy Jackson Yacht and Aircraft, Inc., which was a registered dealer under Chapter 212, Florida Statutes. Although the audit was based upon invoices in the possession of Petitioner, no effort was apparently made to check the records of the supplier, Hansa Jet, to ascertain whether it took tax exemption certificates from either firm. Several of the invoices reflected the sales tax number of Andy Jackson Yacht and Aircraft, Inc. Petitioner was not a registered dealer under Chapter 212, during the audit period. It was originally a division of Andy Jackson Yacht and Aircraft, Inc. and since 1977 has been a wholly owned subsidiary of that firm. (Testimony of Bravade, Jackson, Petitioner's Exhibit 7) By letter of September 12, 1978, Petitioner asked Respondent for an interpretation as to the applicability of the partial tax exemption of Section 212.08(9), Florida Statutes, to its operations. By letter of September 19, Respondent's audit bureau chief advised Petitioner that the exemption applied only to carriers holding certificates of convenience issued by the C.A.B. that establish routes, rates, and reports on operations on such routes. Petitioner thereafter requested a Chapter 120 hearing. (Petitioner's Exhibit 4) Prior to obtaining federal authorization to operate as an air taxi carrier, Petitioner was obliged to meet such preliminary requirements as acquisition of aircraft, insurance coverage, and the preparation of a detailed operations manual for the F.A.A. specifying the structure of the firm, and detailed provisions relating to personnel and operations. Its pilots have the same training and meet the same basic qualifications as those employed by other airlines, and its aircraft are periodically inspected by the F.A.A. under federal standards. Petitioner's place of business is located at the Fort Lauderdale- Hollywood International Airport and it maintains gate and counter space at the terminal. Its aircraft carry both passengers and cargo at published rates. Although it formerly flew scheduled routes to the Bahama Islands, it found these to be unprofitable and discontinued them. Approximately 95 percent of its business is in interstate and foreign commerce, and all of the purchases for which the taxes are presently asserted were for flights in such commerce. Petitioner is listed in the local telephone directory under the heading "Airline Companies." The listing shows destinations in the Bahama Islands and further states "Charter rates on request to all Caribbean and U.S. cities." It accepts passengers without discrimination who are willing to pay the specified rate for passage. It is a member of the Warsaw Pact on limitation of liability for international carriers. Petitioner will quote specific charter rates to a group to a particular place but gives the same rate to any other group desiring transportation to the same destination. Its operations are controlled by the F.A.A. in accordance with Petitioner's plan of operations. It aircraft fly twenty-four hours a day throughout the week. It has no continuing contracts for cargo or passengers. Although it has printed passenger tickets, these are not customarily used. Fares are paid in cash or through national credit cards. Petitioner is free to decline to fly passengers and cargo to a particular destination and exercises its discretion in this respect. It files regular annual reports to the C.A.B. on all of its revenue operations. (Testimony of Jackson, Petitioner's Exhibits 3, 6) Although Petitioner, as an air taxi operator, does not hold a C.A.B. certificate of public convenience and necessity under Section 401 of the Act, it is nevertheless viewed as a "common carrier" by that agency. The C.A.B. does not issue "licenses" to any category of air carrier but construes registration with it to be the same as a license. (Testimony of Untiedt, Petitioner's Exhibit 1)
Recommendation That Respondent revise its proposed assessment against Petitioner to encompass only those transactions occurring after Petitioner's date of incorporation, and enforce the same in accordance with law. DONE and ENTERED this 21st day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Gaylord A. Wood, Jr. 603 Courthouse Square Building 200 South East 6th Street Fort Lauderdale,, Florida 33301 Maxie Broome, Jr. Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 John D. Moriarty Department of Revenue Room 104, Carlton Building Tallahassee, Florida 32304
The Issue The issue in this matter is whether section 330.30(3)(f), Florida Statutes, exempts Petitioner from obtaining the approval of the Department of Transportation prior to using a private heliport site adjacent to his property.
Findings Of Fact The Department is authorized to administer and enforce the rules and requirements for airport sites, including initial airport site approval, registration of private airports, and licensing of public use airports. See § 330.29, Fla. Stat. Petitioner owns a home next to Honeymoon Lake in Brevard County, Florida. Petitioner, an aviation enthusiast, also owns several helicopters. Petitioner currently parks his helicopters at a nearby airport. Petitioner desires to takeoff and land his helicopters at his home. Petitioner built a dock on Honeymoon Lake next to his property. Over the dock, Petitioner constructed a wooden platform to use as his heliport. Petitioner built the platform directly into the submerged lands beneath Honeymoon Lake. The platform is approximately 36 feet long by 32 feet wide. The platform rests on wooden pilings and is raised to about 15 feet above Honeymoon Lake. The platform is connected to the shore by a wooden foot bridge. Petitioner harbors two boats at the dock beneath the platform. Petitioner constructed the heliport for his private, recreational use only. Petitioner wants to use his heliport without applying for approval from the Department. Honeymoon Lake is a private (not State) body of water whose history goes back to a deed issued in the late 18th century. In 1878, President Rutherford B. Hayes, on behalf of the United States government, deeded Honeymoon Lake to the original developer of the area. Honeymoon Lake is approximately 300 feet wide at Petitioner’s property line. The area of the lake where Petitioner’s heliport is located is owned by the Stillwaters Homeowners Association and used as a recreation area. On September 5, 2017, after Petitioner constructed the platform, the Stillwaters Homeowners Association Board of Directors approved Petitioner’s heliport by resolution. Prior to this administrative action, Petitioner applied to the Federal Aviation Administration (“FAA”) for airspace approval to operate his heliport on Honeymoon Lake. On April 13, 2017, the FAA provided Petitioner a favorable Heliport Airspace Analysis Determination in which the FAA did not object to Petitioner’s use of his helicopters in the airspace over Honeymoon Lake. The FAA’s determination included an approved Approach/Departure Path Layout and Agreement with the 45th Space Wing, which operates out of nearby Patrick Air Force Base. Petitioner also represents that the heliport platform does not violate the Brevard County Building Code. In support of this assertion, Petitioner introduced the testimony of Brevard County Code Enforcement Officer Denny Long. In August 2017, after receiving a complaint that Petitioner’s heliport might have been built in violation of Brevard County ordinances, Mr. Long inspected Petitioner’s dock structure. Upon finding that Petitioner had already constructed his platform, Mr. Long could not identify a code provision that he needed to enforce. Therefore, he closed his investigation. Petitioner contends that the Honeymoon Lake area is not taxed by Brevard County. Neither is Brevard County responsible for any improvements thereon.3/ Because his heliport is situated over water and not land, as well as the fact that he will only use the heliport for occasional, private use, Petitioner believes that he is entitled to the exemption under section 330.30(3)(f) from obtaining the Department’s approval prior to landing his helicopters at his heliport. Section 330.30 states, in pertinent part: SITE APPROVALS; REQUIREMENTS, EFFECTIVE PERIOD, REVOCATION.— (a) Except as provided in subsection (3), the owner or lessee of any proposed airport shall, prior to . . . construction or establishment of the proposed airport, obtain approval of the airport site from the department. * * * (3) EXEMPTIONS.—The provisions of this section do not apply to: * * * (f) Any body of water used for the takeoff and landing of aircraft, including any land, building, structure, or any other contrivance that facilitates private use or intended private use. Petitioner asserts that the exemption described in section 330.30(3)(f) extends to a “building, structure or any other contrivance” that is constructed on, or over, a body of water. Therefore, since his landing site is situated over water, Petitioner argues that his heliport should be considered a “structure . . . that facilitates private use” of a “body of water for the takeoff and landing of aircraft” which qualifies him for an exemption from Department approval. Although Petitioner does not believe that he needed to apply to the Department for approval of his proposed landing site, he did so at the FAA’s suggestion. Around April 2017, Petitioner contacted the Department inquiring about the process to obtain an airport license or registration for his heliport. On September 25, 2017, however, the Department denied Petitioner’s application as incomplete. Pursuant to section 330.30(1)(a), the Department instructed Petitioner to produce written assurances from the local government zoning authority (Brevard County) that the proposed heliport was a compatible land use for the location and complied with local zoning requirements. In response, instead of supplementing his application, Petitioner asserted to the Department that his heliport was exempt from registration under section 330.30(3)(f) because it was located in a private body of water. On April 6, 2018, the Department issued Petitioner a formal “Letter of Prohibition.” The Letter of Prohibition notified Petitioner that he was not authorized to operate his helicopter from his dock/heliport without first registering his heliport with the Department and obtaining an Airport Site Approval Order. The Letter of Prohibition further stated that Petitioner’s heliport did not meet the exception from site approval and registration requirements in section 330.30(3)(f). The Department expressed that the exception only applied to “a body of water used for the takeoff and landing of aircraft.” The exception did not apply to the platform Petitioner desired to use as his landing site. Petitioner challenges the Letter of Prohibition in this administrative hearing. The Department, through Alice Lammert and Dave Roberts, asserts that Petitioner must register his private-use heliport before he may use it to takeoff or land his helicopters. Ms. Lammert and Mr. Roberts testified that the Department has consistently interpreted section 330.30(3)(f) to pertain to actual bodies of water, e.g., waters used by seaplanes or other floatable aircraft. Both Ms. Lammert and Mr. Roberts commented that Petitioner is not seeking to takeoff or land his helicopters on Honeymoon Lake. Petitioner intends to use a platform, situated 15 feet above Honeymoon Lake, on which to land his helicopters. Ms. Lammert and Mr. Roberts expressed that Petitioner’s construction of his heliport over water does not change the fact that his heliport is a fixed wooden structure and not a “body of water.” Consequently, Petitioner must obtain Department approval prior to using the platform for his helicopters. Ms. Lammert and Mr. Roberts added that if Petitioner’s helicopters were equipped with pontoons and landed directly on the surface of Honeymoon Lake, his “landing site” would qualify for the exemption set forth in section 330.30(3)(f). Ms. Lammert and Mr. Roberts further explained that the Department is responsible for ensuring that aircraft operating in Florida takeoff and land in safe, controlled areas. Through section 330.30, the Department is tasked to inspect all potential airport sites to make sure that the landing zones do not pose a danger to any aircraft (or helicopter) that might use them. Safety is the Department’s primary focus when approving private airport/heliport registrations. For example, as Ms. Lammert explained, the Department would inspect Petitioner’s heliport to ensure that the platform is sturdy enough and wide enough to bear the weight of Petitioner’s helicopters. The Department might also determine whether the platform should be equipped with a safety net. Regarding Petitioner’s argument that the Department should consider his heliport a “structure . . . that facilitates private use” of a body of water, Mr. Roberts understands the exemption under section 330.30(3)(f) to include docks that are used for persons disembarking from a seaplane or other floatable aircraft. The exemption, however, does not apply if the dock, itself, serves as the landing site. Regarding Petitioner’s reference to the FAA analysis determination, Mr. Roberts explained that while the FAA has authority to approve the use of the airspace over Honeymoon Lake, the authority to approve the landing site remains with the Department. Based on the evidence and testimony presented at the final hearing, Petitioner did not prove, by a preponderance of the evidence, that his heliport qualifies for an exemption under section 330.30(3)(f). Accordingly, prior to his use of his heliport to takeoff or land his helicopters, he must apply for site approval from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner’s request for an exemption from Department approval under section 330.30(3)(f) prior to the use of his wooden platform as a heliport. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2018.
Findings Of Fact Upon receipt of application for sign permit on U.S. 92 (Gandy Boulevard) .0125 mile west of Dale Mabry Highway, in Tampa, Florida, accompanied by City of Tampa building permit DOT on July 26, 1985 approved the application and tags AQ446-25 and AQ447-25 were issued (Exhibit 1). The City of Tampa subsequently notified Respondent that the building permit had been issued in error and was revoked. The proposed sign is located within 200 feet of the Cross-Town Expressway. City of Tampa Ordinance No. 6343 (Exhibit 3) passed April 6, 1976, provided that no sign could be erected closer than 200 feet to the right of way of the Cross-Town Expressway. That ordinance contained a provision allowing non- conforming signs to continue to be maintained until March 1, 1986, after which all such non-conforming signs shall be removed. Since Respondent's proposed sign would be non-conforming the City voided the building permit it erroneously issued. At the hearing Respondent surrendered tags no. AQ446-25 and AQ447-25 to Petitioner and withdrew its claim to these tags.
The Issue The issue in the case is whether Albert E. and Renee Warner's application for an Airspace Obstruction Permit should be granted.
Findings Of Fact Charles W. Brammer owns the Tampa North Aero Park, Inc., which is a Florida-licensed public use landing strip surrounded by private home sites. The landing strip is located in Pasco County. Albert E. Warner and Renee Warner own a lot adjoining the Tampa North Aero Park, Inc. The Warners desire to construct and live in a single family home on the lot identified as Lot 123, Quail Hollow Village Subdivision. According to the Warners, the structure will be concrete block with a wood frame roof. The highest peak of the roof will be no more than 30 feet above ground level (98 feet above mean sea level.) Mr. Brammer is essentially concerned that his airport remain licensed for public use, and is wary of encroachments which may alter its licensing status in the future. The location of the proposed construction exceeds certain federally-established standards and triggers regulatory review of the Warner project. In November of 1995, the Warners began the process of obtaining the permits required for construction of the home at the airstrip. The evidence establishes that the Warners have been cooperative and forthcoming in their attempts to meet regulatory requirements related to their proposed construction. The Warners provided all information as requested by the Department. One of the requirements is that the Federal Aviation Administration (FAA) review the proposal and issue a "Determination of No Hazard to Air Navigation." On March 27, 1996, the FAA issued the "Determination of No Hazard to Air Navigation." The document states that an aeronautical study has been completed (study #96-ASO-286_OE) and identifies the location of the proposed residence as approximately 0.14 nautical miles northeast of the Tampa North Aero Park Airport. The FAA determination contained an incorrect latitude and longitude for the location of the proposed construction. The "Determination of No Hazard to Air Navigation" sets forth the factors considered by the FAA and concludes as follows: Therefore, it is determined that the proposed structure would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities and would not be a hazard to air navigation. By letter of July 12, 1996, the Department issued notice of its intent to grant the Warner application for an Airspace Obstruction Permit. The letter states as follows: We have review results of the Federal Aviation Administration Aeronautical Study of your proposed construction. They have issued a determination your construction can be accommodated without a significant adverse impact on the safe and efficient use of navigable airspace for Tampa North Aero Park and is thus not a hazard to air navigation. We have been unable to identify any aviation activity not addressed by the Aeronautical Study that would necessitate altering flight operations to accommodate your proposed construction or be otherwise adversely impacted by its height at the location proposed.... The Department's permit contained the same incorrect latitude and longitude for the location of the proposed construction as had been set forth in the FAA determination. A condition of the permit requires the structure to be lighted with a red beacon and marked as an obstruction. At some point after issuing the initial determination, the FAA issued a correction to the determination. There is no date on the correction which identifies the date of issuance. Other than the location, the FAA's correction made no changes to the initial determination. The correction states as follows: This corrects a minor change in the latitude and longitude based on survey data provided regarding actual runway location and which moves proposal 2 feet closer to runway. Because this minor move will not change the results of the determination, a new circularization and determination was not considered necessary. All else remains same as on original determination. The Department has not issued a corrected notice of its intent to issue the Warner permit. Although the permit applicants have provided the information requested by the Department, the evidence fails to establish that the applicants have met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit. The evidence fails to establish that the Department gave adequate consideration to the requirements of Section 333.025, Florida Statutes, in reviewing the permit application filed by the Warners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying the Warner application for Airspace Obstruction Permit. RECOMMENDED this 4th day of March, 1997, in Tallahassee, Florida. _ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles W. Brammer, Pro Se Tampa North Aero Park 4241 Birdsong Avenue Tampa, Florida 33549 Albert E. Warner, Pro Se Post Office Box 7084 Wesley Chapel, Florida 33543 Francine M. Ffolkes, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether a statement included in the Department of Transportation's 2014 Median Handbook constitutes an unadopted rule, as defined in section 120.52(20), in violation of section 120.54(1)(a).
Findings Of Fact The Parties Petitioner, Ocala Herlong, LLC, is a Florida limited liability company that owns property located at 2905 North Pine Avenue, Ocala, Florida. This property abuts the State Highway System ("SHS"). Respondent, Department of Transportation, is the state agency that is responsible for, among other things, overseeing access connections to the SHS and the planning, design, and use of traffic control features and devices, including traffic signals, channelizing islands, medians, median openings, and turn lanes, in the SHS right of way. The Statute The statute at issue in this proceeding, section 335.199, Florida Statutes, states in pertinent part: 335.199 Transportation projects modifying access to adjacent property.- (1) Whenever the Department of Transportation proposes any project on the State Highway System which will divide a state highway, erect median barriers modifying currently available vehicle turning movements, or have the effect of closing or modifying an existing access to an abutting property owner, the department shall notify all affected property owners, municipalities, and counties at least 180 days before the design of the project is finalized. The department’s notice shall provide a written explanation regarding the need for the project and indicate that all affected parties will be given an opportunity to provide comments to the department regarding potential impacts of the change. § 335.199, Fla. Stat. The statute requires that for projects that will (among other things) erect median barriers modifying currently available vehicle turning movements, affected property owners will be notified at least 180 days before the project's design is finalized. Background of the Challenged Statement Respondent publishes a document titled "Median Handbook." The cover of the Median Handbook explains that its purpose is to: guide the professional through existing rules, standards, and procedures . . . on the best ways to plan for medians and median openings. Unless specifically referenced, this is not a set of standards nor [sic] a Departmental procedure. It is a comprehensive guide to allow the professional to make the best decisions on median planning. The Median Handbook has not been adopted as a rule pursuant to the rulemaking procedures in section 120.54. On June 13, 2017, Petitioner initiated this proceeding by filing a Petition for the Administrative Determination of the Invalidity of an Agency Statement, pursuant to section 120.56(4), challenging a provision in section 1.3.8 of Respondent's Handbook as an unadopted rule that violates section 120.54(1)(a).2/ Section 1.3.8 of the Handbook is titled "Florida Statute 335.199 - Public Involvement." This section addresses the meaning and applicability of section 335.199, which was enacted in 2010. The provision alleged to be an unadopted rule (hereafter, the "Challenged Statement") appears on page 20 of the Handbook. This provision, which refers to Committee Substitute for Committee Substitute for Senate Bill (or "SB") 1842,3/ states: This bill applies to any proposed work program project beginning design on or after November 17, 2010. The language of the bill states 'whenever the Department of Transportation' proposes any project,' so this language does not apply to permit applications. However, for permit applications that affect medians and median openings, the effected [sic] people and businesses should be informed and involved by the permittee as soon as possible. Upon the enactment of section 335.199,4/ Respondent's staff, including its chief engineer and its legislative liaison, engaged in email discussions, dated November 17 and 18, 2010, regarding the effect the statute would have on Respondent's existing procedures regarding median openings and access management5/ and the application of its access management standards in Florida Administrative Code Rule 14-97.003. Although the email discussion referred to an "implementation plan," at this point, Respondent's discussion primarily focused on whether its procedures and existing rules would need to be amended to address section 335.199. However, by November 29, 2010, Respondent's staff were raising questions as to whether section 335.199 applied to "permit jobs"——referring to the construction of connections to the SHS, which require connection permits pursuant to section 335.1825 and Florida Administrative Code Chapter 14-96. Specifically, in an email dated November 29, 2010, from Respondent's legislative liaison to Respondent's secretary and chief engineer, the following matters were discussed: Brian: You asked me to forward any further questions/comments on the median bill, SB 1842. I had some further thinking-out- loud with DS folks who outlined a couple more thoughts. Recall the opening words of the new language in the bill: Whenever the Department of Transportation proposes any project. These comments/questions are all about permit jobs. Let's use a hypothetical permit application to put in a big gas station. Let's say a left-turn lane will need to be lengthened, so maybe an opening needs to be closed; maybe another needs to be relocated, etc. It's a permit job, not a project DOT is proposing. Does the bill apply at all? If the bill does apply, how is the time of issuance of the permit impacted? On November 30, 2010, Respondent's chief engineer and district operations directors conducted a videoconference to address, among other things, the "[e]ffects of legislative action on SB 1842. How will department practices be impacted, on a statewide basis? Specifically as it relates to permit reviews." As a result of the November 30, 2010, videoconference, Respondent's staff made the decision that "SB 1842 will not apply to permit projects since the Bill says [']whenever the Department of Transportation proposes a project[']. We should not try to expand the Bill or read it in a broader sense." On December 18, 2010, Respondent's chief engineer sent an email to Respondent's secretary and others, titled "SB 1842 transportation projects modifying access to adjacent properties." That email (hereafter, the "Blanchard Memo"), which addresses the applicability of section 335.199 to projects, permit applications, and permittees, states in pertinent part: This bill applies to any proposed work program project beginning on or after November 17, 2010. The language of the bill states [']whenever the Department of Transportation proposes any project['], so this language does not apply to permit applications. However, for permit applications that affect medians and median openings, the effected [sic] people and businesses should be informed by the permitee [sic] as soon as possible. On December 20, 2010, Respondent's secretary responded: "OK." After receiving Respondent's secretary's approval, on December 21, 2017, Respondent's chief engineer distributed the Blanchard Memo to Respondent's district secretaries.6/ Respondent's document regarding Topic No. 625-010- 021-h, titled "Median Openings and Access Management" and dated February 20, 2013, was revised to include, in section 7.2, a statement substantially similar to the Blanchard Memo. This document was approved by Respondent's secretary. In 2014, Respondent published an updated version of its Handbook containing the Challenged Statement (which is set forth in paragraph 6, above). The Challenged Statement has not been adopted pursuant to the rulemaking procedures in section 120.54. Respondent contends that the Challenged Statement is not a rule but is instead merely a reiteration of the statute's language stating that the 180-day notice requirement applies only when Respondent proposes a project. Effect of the Challenged Statement Statute Applicable Only to "Work Program" Projects By its terms, the Challenged Statement concludes that section 335.199 applies only to "work program" projects. At the final hearing, Respondent's party representative, Gary Sokolow,7/ acknowledged that section 335.199 does not define the term "project," and that a person could not determine, from reading the statute, what would (or would not) be considered a "department project" for purposes of determining applicability of the statute. He further acknowledged that the Challenged Statement contains the words "work program" to define projects covered by the statute, but that the statute itself does not contain the words "work program" to define the projects to which it applies. Sokolow also acknowledged that a "work program project" is a specific type of project.8/ He testified that Respondent undertakes "safety" projects that are not "work program" projects and that entail the erection of median barriers that change vehicle turning movements. This evidence establishes that a "work program project" is a specific kind of project, and further establishes that Respondent does undertake projects which are not "work program" projects, and that involve erecting median barriers that change vehicle turning movements. Statute Not Applicable to Connection Permit Applications By its terms, the Challenged Statement also concludes that section 335.199 does not apply to applications for connection permits to obtain access to the SHS.9/ Pursuant to section 335.1825, a connection permit must be obtained in order for the owner of property abutting the SHS to construct a connection to the SHS. To obtain a connection permit, the owner of property for which the connection is sought must file, with Respondent's pertinent district office, an application for a connection permit. The permit application must detail the specific design features of the proposed connection to the SHS. As part of a permit application, the applicant may suggest or request that a median opening be created to accommodate traffic flow as related to the proposed connection to the SHS. Respondent reviews the application for compliance with the applicable requirements of chapter 14-96, and either issues the connection permit or denies the application. Rule 14-96.003(4) states that traffic control features and devices in the right of way——which expressly include medians, median openings, and turn lanes——are not a means of access to the SHS. The rule further states that connection permits are only issued for connections——not for existing or future traffic control features or devices at or near the permitted connections; thus, while a permit may describe such traffic control features or devices, such description does not create any type of interest in such features. Fla. Admin. Code R. 14-96.003(4). Therefore, although a connection permit applicant may request or suggest the construction of a traffic control device, such as a median opening or other device, the applicant is not entitled to such a device. Additionally, Respondent, in the context of reviewing a connection permit application, may, on its own volition, determine that it is appropriate, based on traffic and safety studies, to erect a median, create a median opening, or close an existing median opening——even where (as here) such median erection, opening, or closure has not been requested by the connection permit applicant. To this point, Sokolow distinguished between median changes associated with Respondent's work program projects and those associated with permit applications in that, in the former, the changes are necessitated by Respondent's projects, while in the latter, they are necessitated by a new connection to the SHS. However, he confirmed that Respondent's decision-making process regarding creation of a new median opening and closing of an existing median process in the permit application context is the same as when Respondent itself constructs a project that requires creation of a new median opening and closure of an existing opening, in that in both contexts, Respondent's decisions regarding medians are driven by traffic and safety studies. This evidence establishes that based on Respondent's rules and as a matter of its practice, all decisions to propose, approve, construct, or modify traffic control features——such as erecting a median or opening or closing a median opening——are, in all scenarios, solely within Respondent's control and discretion. Binding Nature of the Challenged Statement When questioned about the effect of the Challenged Statement as set forth in the Handbook, Sokolow testified: "[m]andatory – it's stating that this is what Brian Blanchard asked us to do. . . . It should be followed unless there is a darn good reason not to follow it." When asked whether Respondent's district offices could elect not to follow the Challenged Statement, Sokolow responded "[m]y opinion is no. They really need to follow what it says there." Specifically regarding the third sentence in the Challenged Statement, which states "for permit applications that affect medians and median openings, the effected [sic] people and businesses should be informed and involved by the permittee as soon as possible," Sokolow testified that Respondent wanted to ensure that affected property owners would be given notice of connection permit applications that would affect medians and median openings——whether by the permittee (who technically, at the time of applicant processing, would be an "applicant," rather than a "permittee") or by Respondent. However, he acknowledged that Respondent did not have any rules or policies requiring it, rather than a connection permit applicant, to notify property owners regarding applications for connection permits that would affect medians and median openings. He further acknowledged that pursuant to the Challenged Statement, Respondent includes, in notices of intent to issue highway connection permits that would affect a median or median opening, the requirement that the applicant give notice to affected people or businesses as soon as possible. The upshot of Sokolow's testimony is that Respondent's districts must comply with the determination that the statute is applicable only to Respondent's work program projects and is not applicable to permit connection applications, but that the notice directive in the third sentence of the Challenged Statement is not "mandatory" because the notice may be provided either by the permittee or by Respondent. To that point, Sokolow acknowledged that this sentence requires such notice to be provided to affected people and businesses, so providing such notice is not discretionary in the sense that a permittee may simply choose whether or not to provide the notice; however, he contended that the notice requirement is not binding or mandatory for permittees because, as a matter of practice, Respondent, rather than the permittee, sometimes provides the notice. Sokolow acknowledged that Respondent did not have any formal standards for determining when Respondent, in lieu of the permittee, would assume responsibility for providing the notice. Impact of the Challenged Statement on Petitioner As noted above, Petitioner owns property in Ocala, Florida, that abuts the SHS. Because the Challenged Statement prescribes the notice to be provided for projects that will affect medians and median openings on the SHS, and, thus, potentially impact access to and from Petitioner's property, Petitioner is substantially affected by the Challenged Statement. Feasibility and Practicability of Rulemaking Respondent does not argue, and did not present evidence to show, that if the Challenged Statement is determined to be a rule, rulemaking is not feasible or practicable.10/
The Issue The issues for determination in this case are 1) whether Respondent Department of Environmental Protection, Hillsborough County, as the permitting authority, should issue a final Title V Air Operation Permit to Respondent Southeast Oil Development Corporation, for its fiberglass lay-up and abrasive blasting facility in Thonotosassa, Florida; and 2) whether the conditions contained in the Draft Title V Air Operation Permit proposed for issuance to Southeast Oil are sufficient to ensure compliance with applicable provisions of Chapter 403, Florida Statutes, and Chapter 62, Florida Administrative Code.
Findings Of Fact Petitioners, JAMES REINA, ANGELO M. REINA, NANCY C. REINA, HELEN REINA, and STEVE QUICK, are residents of Thonotosassa, in Hillsborough County, Florida, and reside within one-third mile of a fiberglass lay-up and abrasive blasting facility owned and operated by Respondent SOUTHEAST OIL & DEVELOPMENT CORPORATION. Petitioners’ residences are located to the southwest of the fiberglass facility. Respondent, SOUTHEAST OIL & DEVELOPMENT CORPORATION (SOUTHEAST), owns and operates a fiberglass lay-up and abrasive basting facility located at 11801 Elyssa Road, Thonotosassa, in Hillsborough County, Florida. Respondent, DEPARTMENT OF ENVIRONMENTAL PROTECTION, HILLSBOROUGH COUNTY (EPC), is the local regulatory agency authorized to act as the permitting authority for Title V Air Operations permits. EPC is processing and acting on the subject’s air permit on behalf of the Florida Department of Environmental Protection, pursuant to operating agreements between the state and local agencies. The SOUTHEAST facility operation which is the subject of these proceedings consists of taking a steel tank shell and abrasive blasting around the filer ports openings. The tank is then covered with a layer of mesh, mylar, and styrene based fiberglass resin. The tank is rotated to aid in an even application. Prior to shipment, wood crates are cut to protect the tank in transit. The SOUTHEAST facility has been in continuous operation, manufacturing tanks at this location since 1985. During the manufacturing process, there is no open air venting while chemicals are mixed. Manufacturing is conducted in an enclosed and covered facility. Chemical containers are tightly capped when not in use. The SOUTHEAST facility currently manufactures approximately 150 tanks on an annual basis. The tanks are primarily used for gasoline storage. Styrene is the chemical that produces a fiberglass odor during the tank manufacturing process. Under the terms and conditions of its current and proposed permits, SOUTHEAST is limited in the amount of styrene allowed to be used in the manufacturing process. Approximately three years ago, SOUTHEAST changed its formula for the manufacturing process. The current formula includes a secret ingredient designated “Ingredient A” which contains significantly less styrene than SOUTHEAST’S prior formula. The use of “Ingredient A” has resulted in less styrene emission during the manufacturing process. The fiberglass odor emitted during the manufacturing process is sporadic and dependent on the wind and weather conditions. Petitioners do not detect the odor on a continual basis, and for several months at a time, there is no noticeable odor. The objectionable nature of the odor is dependent on the various sensitivities of the Petitioners. On at least two occasions within the last year, some of the Petitioners have complained to EPC of the odor; however, EPC’s investigators who responded to the complaints in a timely manner were unable to detect significant levels of fiberglass odor at Petitioners’ residences. The investigators did not consider the odors detected as objectionable. The fiberglass odor emitted during the manufacturing process is not offensive to all of the neighboring businesses and residences. The owner of the business closest in proximity to SOUTHEAST has not made a complaint regarding an objectionable odor emission and does not consider the odor objectionable. There is no evidence that the odor emitted during the manufacturing process presents a health problem to the residents of the area. The permit proposed by EPC contains conditions controlling the emission of objectionable odors and places limits on the amount of styrene which may be utilized by SOUTHEAST during the manufacturing process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a Final Order granting Southeast Oil’s Application for Title V Air Operation Permit for the fiberglass lay-up and abrasive blasting facility, with the conditions included in the December 13, 1996, Draft Permit with conditions. DONE AND ENTERED this 6th day of August, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1997. COPIES FURNISHED: David M. Carr, Esquire 600 East Madison Street Tampa, Florida 33602 Richard E. Fee, Esquire Ganther and Fee, P.A. 101 East Kennedy Boulevard Barnett Plaza, Suite 1030 Tampa, Florida 33602 Sara M. Fotopulos, Esquire Vernon R. Wagner, Esquire Hillsborough County Environmental Protection Commission 1900 9th Avenue Tampa, Florida 33605 Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399 James Reina, pro se 9947 Fowler Avenue Thonotosassa, Florida 33592 Angelo M. Reina, pro se Nancy C. Reina, pro se 9949 Fowler Avenue Thonotosassa, Florida 33592 Helen Reina, pro se 9951 Fowler Avenue Thonotosassa, Florida 33592 Steve Quick, pro se Betty Quick, pro se 9953 Fowler Avenue Thonotosassa, Florida 33592
